*1 v. TEXAS. SPENCER January 23, 1967.* 17-18, 1966. Decided Argued October No. to the Court Texas, on certiorari Bell 69, with No. *Together 70, and No. argued Texas, October Appeals of Criminal United States Director, on certiorari Corrections Beto, Reed 18, 1966. argued, October Circuit, Fifth Appeals for Court *2 Michael D. Matheny, by appointment of the Court, post, p. 896, argued the cause for appellant in No. 68. With him on the Tom, brief was Joe B. Goodwin. R. Scott argued the cause and filed briefs for petitioner No. 69. Emmett Colvin, Jr., argued the cause for peti- tioner in No. 70. With him on the brief were Charles W. Tessmer and Clyde W. Woody.
Leon Douglas argued the cause for appellee in No. 68. With him on the brief were Waggoner Carr, Attorney General of Texas, and Hawthorne Phillips, First Assistant Attorney General. Mr. Phillips argued the cause for re- spondent in No. 69. With him on the briefs were Mr. Carr, T. B. Wright, Executive Assistant Attorney Gen- eral, and Lonny F. Zwiener, Gilbert J. Pena and Howard M. Fender, Assistant Attorneys General. Mr. Fender argued the cause for respondent in No. 70. With him on the brief were Messrs. Carr, Phillips, Wright, Pena and Zwiener.
T. W. Bruton, Attorney General, pro se, and Ralph Moody, Deputy Attorney General, filed a brief for the Attorney General of North Carolina, as amicus curiae, in No. 69.
Mr. Justice Harlan delivered the opinion of the Court.
Texas, reflecting widely established policies in the criminal law of this country, has long had on its books Their statutes. habitual-criminal so-called guilty found those punishment enhance is to effect convicted shown also are who crime hand at cases The three past. in the crimes other Texas by employed procedures challenge the statutes.1 of such enforcement be- convictions time at recently, Until that, was procedures those essence us,
fore introduc- indictment allegations through convictions, past a defendant’s respecting proof tion fully was charge criminal pending trying also was derelictions, but previous such informed were matters such the court charged *3 defendant’s the assessing in account into taken indictment.2 current the under innocence 63, 64 62, 1 are Articles involved here statutes The (1952). Pen. Code Texas of the felony less of a the trial on it be shown “If provides: 62 Article the convicted before has been defendant the capital that than on such punishment nature, the same the offense, or one same highest which be the shall conviction subsequent or other second ordinary cases.” in offenses of such commission to the affixed con- times three shall provides: “Whoever 63 Article conviction third on such capital shall felony than less of a victed penitentiary.” the in life imprisoned for be any time second convicted person “A provides: 64 Article pun- an alternate is affixed as of death penalty to which offense punishment a less conviction second such on not receive shall ishment penitentiary.” in the for life imprisonment than Art. Proe. Crim. Texas Code in embodied were procedures These any in impaneled being jury “A follows: providing (1941), The order: 1. following in the proceed shall action, cause criminal attorney jury by read to be shall or information indictment shall State part of the testimony on The 4. ... prosecuting. noncapital in that, least appears at gloss it judicial By be offered.” keep could prior convictions his by stipulating cases, a defendant State, Pitcock v. jury. See away from knowledge of them Spencer, 389 in below decision But see the 2d S. W. stipulation rule inapplicability 304, for the 2d S. W. The facts the cases now here are these. In Spencer (No. 68), the petitioner3 was indicted for murder, malice, of his common-law wife. The indictment alleged the defendant had previously been convicted of murder with malice, factor which if proved would en- title jury to sentence the defendant to death or to prison for not less than life under Texas Pen. Code Art. n. supra, if whereas conviction was not proved the jury could fix the penalty at death aor prison term of not less than two years, see Texas Pen. Code Art. 1257. Spencer made timely objections to the reading to the jury of portion of the indictment, and ob- jected as well to the introduction of evidence to show his prior conviction. The jury was charged that if it found that Spencer had maliciously killed the victim, and that he had previously been convicted of murder with malice, the jury was to “assess his punishment at death or con- finement in the penitentiary for life.” jury The was in- eapital eases. In the view we take of the constitutional issue before us we consider it immaterial whether or not that open course was any petitioners. of the Subsequent present to the convictions Texas passed a new law respecting governing recidivist cases, the effect of which seems to except capital cases given is not the recidivist issue until it has first found the guilty defendant under the principal charge. Texas Code Crim. Proc. *4 Art. 36.01, January effective 1, 1966. Since these cases were all tried under the older procedure, the new statute is not before us. 3The question Spencer of whether properly here as an appeal, a matter which postponed we to consideration of the merits, is a tangled one. See Dahnke-Walker Milling Co. v. Bondurant, 257 U. 282; S. Hart Wechsler, & The Federal Courts and the Federal System 565-567 (1953). Rather than undertake to it, resolve we think it profitable more to dismiss this appeal, petition treat it as a for certiorari, 28 U. S. 2103, C. grant § and the petition, particularly as there is pending in the Spencer's Court timely filed alternative petition for certiorari, which has been held to await the outcome of appeal. this Accordingly we in opinion referred to Spencer “petitioner.” as a prior the consider not it should that well as structed the on guilt defendant’s of the any evidence as conviction found was Spencer tried. being was he which on charge death. to sentenced and guilty for indicted was petitioner the 69), (No. Bell In been had he that alleged indictment the and robbery, United the in robbery bank of convicted previously Texas. of District the Southern for Court District States ground, the on indictment the quash to moved Bell read- and allegation the that Spencer, in that to similar and prejudicial was offense prior aof jury the ing to objections Similar trial. fair aof him deprive would to documentary offer the of. made were jury the charge court’s The conviction. prior the prove considered not should conviction prior the that stated the on innocence issue upon passing non- in this sentencing procedure The charge. primary Spencer. that from different somewhat was case capital the defendant if it found that instructed was jury The fix it could charge, robbery present only guilty than more nor years five than less not at his sentence found if it But Art. Code Pen. Texas See life. alleged convicted previously also Bell had guilty a bring in verdict should indictment, finding a further assault robbery by offense for conviction a final “charging allegations found, so The true.” are robbery bank for such law set punishment, fixed judge See penitentiary. in the imprisonment life at offender, supra. note Art. Code Pen. Texas a third-offender involving 70),4 (No. case Reed The come Bell cases Spencer and case, unlike Reed 4 The from Texas, here Appeals of of Criminal Court from us Fifth Appeals Court States United of the judgment of habeas a writ dismissal Court’s District affirming the Circuit procedure did Texas ground corpus on *5 723. F. 2d Constitution. States United offend prosecution for burglary, see Texas Code Pen. 63, Art. n. 1, supra, entailed the same practice as followed in Bell.
The common and sole constitutional claim made in
these cases is that Texas’
use of
convictions in the
current criminal
trial of
petitioner
each
was so egregi-
ously unfair upon the
issue of
or innocence as to
offend the provisions of the Fourteenth Amendment
no State shall “deprive any person of life,
liberty,
property, without
process
due
of law . . . .” We took
these cases for review,
The road to decision, it seems to us, is clearly indi-
cated both by what
the petitioners in these cases do
not contend and by the course of the authorities
closely related fields. No claim is made here that re-
cidivist statutes
are themselves unconstitutional,
nor
could there be under our cases. Such statutes and other
enhanced-sentence laws, and procedures designed to im-
plement
their underlying policies, have been enacted in
all the States,6
the Federal Government as well.
See, e. g., 18 U. S. C. § 2114; Fed. Rule Crim. Proc.
5 The Third Circuit
in United States v. Banmiller, 720,
F. 2d
held a
Pennsylvania
similar
procedure,
applied
when
in capital cases,
unconstitutional.
The Fourth Circuit held
comparable
Maryland
practice
unconstitutional
in all cases.
Lane v. Warden,
32
here
circumstances
procedural
precise
in
not
though
several
on
Court
in
sustained
been
have
involved,
constitu-
they violate
contentions
against
occasions
post
ex
jeopardy,
double
dealing
strictures
tional
process,
due
punishment,
unusual
and
cruel
laws,
facto
Moore
immunities.
and
privileges
protection,
equal
Massachusetts,
v.
McDonald
673;
S.
Missouri,
U.
159
v.
616;
S.U.
Virginia,
West
v.
Graham
311;
S.U.
S.
Boles, 368 U.
v.
Oyler
728;
S.U.
Burke, 334
v.
Gryger
for
is unconstitutional
it
contended
it
isNor
to a
out
meted
be
to
punishment
assess
to
jury
make
toor
case,
criminal
other
capital
in a
defendant
con-
prior
not
or was
was
there
whether
to
findings as
be
is left
punishment
enhanced
though
even
viction
always
have
The States
judge.
imposed
between
responsibility
dividing
leeway
wide
given
Davis,
Hallinger v.
cases.
criminal
jury
judge
cf.
581;
S.U.
Dow, 176
v.
Maxwell
314;
S.
146 U.
Pennsylvania,
v.
Giaccio
3;S.
Fretag, 348 U.
v.
Chandler
8.n.
405,
399,
S.
382 U.
arguing
to be
appear
even
do
Petitioners
de-
of a
is told
if a
infringed
is
the Constitution
concerning evidence
rules
The
crimes.
prior
fendant's
jurisdiction
vary from
and'
complex,
are
offenses
broadly.
summarized
they can
but
jurisdiction,
recognized
generally
such
Because
except
usually excluded
prejudice,
potentiality
things
showing such
probative
particularly
it is
when
States,
S.
336 U.
v. United
Nissen
Nye &
intent,
W. 2d
S.
117, 282
R.
Tex. Cr.
State, 162
v.
Ellisor
Tex.
State, Doyle v.
crime,
in the
an element
393;
State,
v.
Chavira
identity,
1131;
W.
126 S.
Cr. R.
v.
Moss
malice,
115;
2d
S. W.
197, 319
R.
Cr.
167 Tex.
Tex.
State, 168
Moses
motive,
389;
2d
State,
W.
364 S.
Cr. R. 409, 328 S. W. 2d 885; a system of criminal ac-
tivity, Haley v. State, 87 Tex. Cr. R. 519, 223 S.
202;W.
or when the defendant has raised the issue of his char-
acter, Michelson v. United States, 335
S.U.
469, Perkins
State,
Under Texas law
convictions of the defend-
ants in the three cases before the Court
today might
have been admissible for any one or more of these uni-
versally accepted reasons.
In all these situations, as
under the recidivist statutes,
the jury learns- of prior
crimes committed by the defendant, but
the conceded
possibility of prejudice is believed to be outweighed by
the validity of the State’s purpose in permitting intro-
duction of the evidence. The defendants’ interests are
protected by limiting instructions, see Giacone
State,
supra,
by
and
the discretion residing with the trial judge
to limit or forbid the admission of particularly prejudi-
cial evidence even though admissible under an accepted
rule of evidence. See Spears v. State, 153 Tex. Cr. R.
7These Texas cases reflect
the rules prevailing in nearly all
jurisdictions.
common-law
See generally McCormick, Evidence
§§ 157-158 (1954); 1 Wharton’s Criminal Evidence §§221-243
(Anderson ed. 1955); 1 Wigmore, Evidence
(3d
§§ 215-218
ed.
1940 and 1964 Supp.); Note, Other Crimes Evidence
Trial,
at
70
Yale L. J. 763 (1961). For
English
rules, substantially similar,
see Cross, Evidence
(2d
292-333
1963).
ed.
Recent commentators
have criticized the rule of general exclusion, and have suggested a
range
broader
of admissibility. Model Code of Evidence, Rule 311;
Carter, The Admissibility of Evidence of Similar Facts, 69
Q.
L.
Rev. 80 (1953), 70
Q.
L.
Rev. 214 (1954); Note, Procedural Pro
tections of the Criminal Defendant, 78 Harv. L.
Rev.
435-451
(1964). For the use of
type
this
of evidence in
juris
continental
dictions, see Glanville Williams, The Proof of
(2d
Guilt 181
ed.
1958); 1 Wigmore, supra,
193.
§
ed.
(3d
29a§
Evidence
Wigmore,
812;
2dW.
S.
Code
Model
45;
Evidence
Rule
Uniform
1940);
303.
Evidence, Rule
law
sufficiently indicates
survey
general
This
developed
chiefly
has
evidence,
reconcile
designed
of rules
a set
evolved
has
States,
will
information
type
this
possibility
usefulness
admitted
effect
prejudicial
some
one
any
by the
considered
factor
aas
itself
evidence
The
purposes.
valid
number
large
aof
aof
always,
almost
cases
usually,
is
there
us
before
cases
in the
kind,
documentary
inflam-
way
any
inwas
presentation
its
claim
no
S.
States,
U.
United
Marshall
Compare
matory.
infringed
Constitution
States
United
say the
To
prejudi-
may be
type
because
simply
*8
prej-
vitiate
inadequate
instructions
limiting
and
cial
com-
entire
this
into
inroads
make
would
effects,
udicial
would
and
law,
evidentiary
criminal
of state
code
plex
ex-
For
jurisprudence.
of trial
areas
large
other
threaten
codefendants
of several
whether
trials,
joint
all
ample,
furnish
offenses,
multiple
charged with
defendant
of one
sub-
evidence
when
for unfairness
opportunities
inherent
acquit-
an
bemay
there
(on which
crime
to one
mitted
charge.
totally different
as to
jury
may influence
tal)
Opper
cf.
232;
States,
S.
U.
United
Paoli v.
Delli
See
v. United
Krulewitch
84;
States, 348 U. S.
United
is
effect
prejudicial
type
This
States, 336 U.
S.
it is
but
practice,
criminal
inhere
acknowledged to
expected
(1) the
grounds
on
justified
to its
limiting
instructions
follow
dif-
trying
the convenience
(2)
function,
proper
connected
person,
same
against
crimes
ferent
trial
same
in the
defendants,
different
against
crimes
interest.
governmental
valid
Such an approach was in fact taken by the Court Michelson v. United States, 335 U. S. 469. There, in a
federal prosecution,
the Government was permitted cross-examine defense witnesses as to the defendant’s
character and to question them about a prior conviction.
The Court, recognizing the prejudicial effect of this evi-
dence, noted that “limiting instructions on this subject
are no more‘difficult to comprehend or apply than those
upon various other subjects,” id., at 485, and held that
this Court was not the best forum for developing rules
of evidence, and would, therefore, not proscribe the long-
standing practice at
issue. A fortiori,
this reasoning
applies in the cases before us today which arise not under
what has been termed the supervisory power of this Court
over proceedings in the lower federal courts, see
Cheff
Schnackenberg,
Cases in this Court have long proceeded on the premise
that the Due Process Clause guarantees the fundamental
Tumey
g.,
e.
See,
trial.
criminal
ain
fairness
of
elements
455;
S.
316 U.
Brady,
v.
Betts
510;
S.U.
Ohio, v.
v.
Estes
see
335;
S. U.
Wainwright,
v.
Gideon
cf.
S. U.
Maxwell, v.
Sheppard
532;
S.
Texas, 381 U.
has
it
But
12.
S.U.
Illinois, 351
v.
cf.
333;
Griffin
Court
this
establish
cases
such
that
thought
been
never
state
of
promulgation
the
organ
rule-making
aas
spe
the
of
none
And
procedure.
criminal
of
rules
Court
ordains
Constitution
of the
provisions
cific
state
legitimate
the
of
face
the
In
authority.
such
that
use
widespread
and
long-standing
the
purpose
im
it
find
we
here,
attack
under
procedure
the
attend
some
of
possibility
of
because
say
to
possible
un
rendered
is
procedure
Texas
prejudice
collateral
has
Clause
Process
Due
under
constitutional
Mr.
As
cases.
past
in our
applied
interpreted
been
rule
a state
remark,
to
occasion
had
Cardozo
Justice
Amendment
Fourteenth
foul
run
“does
law
be
to
thinking
our
to
may seem
method
another
because
protection
promise
surer
a
give
toor
wiser
fairer
S.U.
Massachusetts, 291
v.
Snyder
bar.”
at
prisoner
427.
S.U.
York, 319
Newv.
Buchalter
also
See
105.
S.U.
Denno, 378
v.
Jackson
on
reliance
Petitioners’
unconstitu-
held
the Court
There
misplaced.
trial
leaving to
York
the New
tional
con-
challenged
aof
voluntariness
issue
alone
characterized
of law
area
an
fession,
rules.
constitutional
stiff
particularly
development
Miranda
534;
S.
Richmond, 365 U.
Rogers
See
judicial
held
Court
The
S.
Arizona, 384 U.
mat-
aas
whether
determine
required
first
ruling was
confession
law—the
constitutional
law—federal
ter
a requirement
This
voluntary.
deemed
could
question
federal
on
a judge
before
hearing
threshold
argument
support
solid
no
lends
of voluntariness
when-
required
trial
two-stage jury
here —that
made
*10
ever a State seeks to invoke an habitual-offender statute.
It is true that
the Court in Jackson supported its hold-
ing by reasoning that a general jury verdict was not a
“reliable” vehicle for determining the issue of voluntari-
ness
jurors
because
might have difficulty in separating
the issues of voluntariness from that of guilt or inno-
cence. But the emphasis there was on protection of a
specific constitutional
right, and the Jackson procedure
was designed as a specific remedy to ensure that an in-
voluntary confession was not in fact relied upon by the
jury.
In the procedures before
inus,
contrast, no specific
federal right
—such
that dealing with confessions —is
involved; reliance is placed solely on a general “fairness”
approach.
In this area the Court has always moved with
caution before striking down state procedures.
It would
be extravagant
in the extreme to take Jackson as evinc-
ing a general distrust on the part of this Court of the
ability of juries to approach their task responsibly and
to sort out discrete issues given to them under proper
instructions by the judge in a criminal case, or as stand-
ing for the proposition that
limiting instructions can
never purge the erroneous introduction of evidence or
limit evidence to its rightful purpose. Compare Opper
v. United States,
It is fair to say that neither the Jackson ease nor any other due process decision of this Court even remotely supports the proposition that the States are not free to enact habitual-offender statutes of the type Texas
8 Indeed the most recent scholarly study of jury behavior does not sustain the premise juries are especially prone prejudice prior-crime when evidence is admitted as to credibility. Kalven & Zeisel, The American Jury (1966). The study contrasts the effect of such evidence on judges juries and concludes that “Neither the one nor the other can be said to be distinctively gullible or skeptical.” Id., at 180. *11 tending trial during to admit and chosen
has statutory scheme. under required allegations prove dealing procedures state a spectrum for Tolerance especially enforcement lawof problem common with a is acknowl of recidivism rate The here. appropriate dealing methods variety of wide a high,9 to be edged prog is in experimentation exists, and problem with applying The common-law ress. us, which before cases in the by Texas used
statutes, in convictions past proof and allegations requires known best and simplest course, is, trial, current the recidivist deal jurisdictions Some procedure.10 v. g., Oyler e. see, proceeding, totally separate ain issue 2, (n. already observed 448, and Boles, S. 368 U. changed to recently some extent Texas supra) can proceeding such In some States course. substantive the new on conviction after even instituted Graham (1959); 168.040 § Stat. Rev. offense, see Ore. for deter method S. 616. The Virginia, 224 U. West jurisdictions between also varies mining prior convictions Ann. g., Stat. e. Fla. issue, on this affording a trial to the leaving question those (1965); and § 775.11 Mo. (a); Proc. 32 Crim. g., court, see, e. Fed. Rule procedure, Another (2) (1959).11 §556.280 Rev. Stat. 9 in survey Uniform Crime,” collected “Careers statistical See (Dept, Justice, p. 1965, 27 Reports for the Crime United States — States, 1966, reveals 1966). Abstract of the United The Statistical year end prisons in the prisoners to federal committed 62% Id., at 163. previously committed. 1965, ing 30, had been June procedures, survey analysis various recidivist For a (1965); Procedures, 40 N. Y. U. L. Rev. Note, see Recidivist Note, Pleading Proof of Convictions The Prior also see (1958). Prosecutions, L. Rev. 210 33 N. Y. U. Criminal Habitual impose punishment since authority juries have had Texas power judge. See held 11 States this but in all but Procedure, Rev. 44 Tex. L. Reid, of Criminal The Texas Code (1966). 1008-1009
used Great Britain and Connecticut, see Coinage Offences Act, 1861, 24 & 25 Viet., c. 99; State Ferrone, 96 Conn. 160, 113 A. 452, requires that the indictment allege both the substantive crime and convic- tion, that both parts be read to the defendant prior to trial, but that only the allegations relating to the substan- tive crime be read to the jury. If the defendant is con- victed, the prior-offense elements are then read to the jury which any considers factual issues raised. Yet an- other system relies upon parole authorities to with- *12 hold parole in accordance with their findings as to prior convictions. g., See, e. N. J. Stat. Ann. § 30:4-123.12 (1964). And within each broad approach described, other variations occur. A determination of the “best” recidivist trial pro-
cedure necessarily involves a consideration of a wide variety of criteria, such as which provides method most adequate notice to the defendant and an opportunity to challenge the accuracy and validity of the alleged prior convictions, which method best meets the particu- lar jurisdiction’s allocation of responsibility between court and jury, which method is best accommodated to the State’s established trial procedures, and of course which method is apt to be the least prejudicial in terms of the effect of prior-crime evidence on the ultimate issue of guilt or innocence. To say that the two-stage jury trial in the English-Connecticut style is probably the fairest, as some commentators and courts have sug- gested,12 and with which we might well agree were the
12See,
g.,
e.
Lane v. Warden,
Mr. Justice Stewart, concurring. If the Constitution gave me a roving commission to impose upon the criminal courts of Texas my own no- tions of enlightened policy, I would not join the Court’s opinion. For it is clear to me that the recidivist pro- cedures adopted in years recent by many other States1— by Texas herself since January 1 of year2 last —are far superior to those utilized in the cases now before us. But the question for decision is not whether we applaud or even whether we personally approve procedures followed in these recidivist eases. The question is whether those procedures fall below the minimum level the Four- teenth Amendment will tolerate. Upon that question I am constrained to join the opinion and judgment of the Court.
Mr. Chief Justice Warren, with whom Mr. Justice Fortas concurs, dissenting in Nos. 68 and 69, and con- curring in No. 70. It seems to me that the only argument made Court which might support its disposition of these cases is the amorphous one that this Court proceed should
hesitantly in dealing with courtroom procedures which are alleged to violate the Due Process Clause of the Fourteenth Amendment. It attempts to bolster its de- *14 cision with arguments about the conceded validity of the purpose of recidivist statutes and by pointing to occa- 1See opinion of The Chief Justice, post, at 586, n. II.
2See opinion of the Court, ante, at 556, n. 2. traditionally ad- is crimes of evidence when sions finding guilt related purpose specific to serve mitted I do discuss, I shall reasons the For or innocence. decision. the for support arguments two in these find not toward attitude cautious its by I persuaded am Nor decision for criteria the recognize I procedure. this necessarily drawn are cases process due procedural in legal our of attitudes jurisprudential traditional the from constitu- relatively specific from than rather system recog- long Court this However, command. tional in procedures of courtroom importance central the nized Justice As Mr. liberties. our constitutional maintaining individual history of us, reminded often Frankfurter observ- history of coincident largely liberty is Refugee Anti-Fascist Joint safeguards, procedural ance of concurring opinion S. McGrath, 341 U. Committee at J., Frankfurter, of evi- prior-convictions the use to me seems
It odds with at fundamentally is cases in these dence proce- this because process, notions due traditional legiti- conflicting but resolution nicest not the dure because accused, but the State and mate interests advancing without accused needlessly prejudices wrong If I am State. of the legitimate interest any evi- prior-convictions introduction thinking that for the alone, I am not purpose no valid dence serves is advanced State what interest Court never states my view, under- failure, And this procedure. this opinion. logic of the Court’s mines of en- purpose valid said about is much There offenders, with which repeating for punishment hanced criminal variety of occasions in I agree, and about as hav- admitted prior-crimes in which trials or innocence. question ing some relevance support I either But cannot find by analogy to the of recidivist statutes purposes *15 traditional occasions where prior-crimes evidence is ad- mitted. And the Court never up faces to the problem of trying justify on the ground the State would not process violate due if it prior used simply convictions guilt evidence of because criminal showed propensity.
Recidivist statutes have never thought been to allow the State to show probability of guilt because of prior convictions. Their justification is only that a defendant’s prior crimes should lead to punishment enhanced any for subsequent offenses. Recidivist statutes embody four traditional rationales for penal imposing sanctions.1 A man’s prior crimes are thought aggravate his subsequent crimes, greater and thus than usual retribu- tion is warranted. Similarly, policies of insulating society from persons whose past conduct indicates their propensity to criminal behavior, of providing deterrence from future crime, rehabilitating criminals are all theoretically by served enhanced punishment according to recidivist statutes.' None these four traditional justifications for recidivist statutes is related in any way to the burden of proof to which the State is put to prove that a crime has currently by committed alleged recidivist. The fact of prior convictions is not intended recidivist statutes to make it any easier for the State to prove the commission of a subsequent crime. The State does not argue in these cases that its statutes are, or constitutionally be, could intended to allow the prosecutor introduce convictions to show the accused’s criminal disposition. But the Court’s opinion seems to accept, without discussion, that this use of prior- crimes evidence would be consistent with due process.
The amended Texas procedure is the nearest demon- stration that none of the interests served by recidivist
1 See generally Note, Recidivist Procedures, 40 N. Y. U. L. Rev. 332 (1965). evi- prior-crimes by presentation is advanced
statutes guilty. Under found has been the defendant dence before January since effective statutory law,2 current *16 felony cases cases, in these involved not therefore innocence guilt or question the decides first jury the only after the de- charged, and currently crime of the crime is evidence of the current guilty is found fendant of whether entirely separate question on the presented a crime convicted previously has been the defendant statute of a recidivist scope the him within places Texas the old Under punishment. enhanced requiring the new as under cases, just in these involved only is relevant prior fact of convictions procedure, Recidivist punishment. enhanced question to the method nothing to do with the statutes have whatever has committed by which State shows that an accused a crime.
Whether or not a State has recidivist statutes on its books, prior is well con- established that evidence may by victions not be used the State to show a criminal disposition accused has and that probability that he currently committed the crime charged is increased.3 While this Court held has never
2 36.01, January 1, Texas Code Crim. Proc. Art. effective two-stage procedure apply capital The new cases, does not apparently being capital reason for the distinction because in cases jury punishment applicable a choice of under the validity statute. The of this distinction will be discussed below. 3Professor McCormick states: prosecution may “The rule is that not introduce evidence substantially other criminal acts of the accused unless the evidence is purpose probability relevant for some other than to show a that he committed the crime on trial he man of char- because is a criminal McCormick, (1954 ed.). acter.” Evidence 157§ Wigmore agrees general Dean with this statement of the rule of exclusion, 1 Wigmore, (3d 1940). Wig- Evidence As 193-194 ed. §§ points out, prior more objectionable, evidence of be- crimes likely cause it is not probative, somewhat but because the to use of convictions to show nothing more than disposition to commit crime violate would Due Process Clause of the Fourteenth Amendment, our exercising decisions supervisory power over criminal trials in courts,4 federal as well as by decisions courts give it more weight than it might deserves and decide that the de- punished fendant deserves past because of the crime without regard to guilty whether he is currently crime charged. 4See, g., e. Marshall States, v. United (1959); U. S. 310 Michelson v. States, United Boyd U. 469 (1948); S. v. United States, 142 (1892). U. S.
In Michelson, the Court stated: “Courts that follow the common-law tradition unanimously almost come disallow prosecution resort any kind of evidence of a defendant’s evil character to establish probability *17 of guilt. his Not that the law invests the defendant pre with a sumption good of character, Greer States, v. United 245 U. S. simply but it closes the whole of character, disposition matter and reputation prosecution’s on the may The case-in-chief. state not show prior defendant’s trouble law, specific with the acts, criminal or ill among name his neighbors, though even might such facts logically persuasive be by that he is propensity probable a perpe trator the of inquiry crime. The rejected not is because character irrelevant; is on the contrary, it weigh is said to much too with the jury overpersuade and to so them prejudge as to one with a general bad deny record and him a opportunity fair to defend against particular a charge. overriding The policy excluding of such evidence, despite probative its admitted value, practical is the experience that its prevent disallowance tends to issues, confusion of surprise unfair prejudice.” and undue S., 335 U. at 475-476. In Marshall, the Court reversed a conviction where it was shown newspaper accounts of the prior defendant’s convictions had by been seen a substantial jurors. number of The Court stated: “. . . have exposure We here the jurors of to information of a judge character which the trial prejudicial ruled was so it could not directly be offered as prejudice evidence. The to the defendant is almost certain great to be as when that evidence reaches the through news accounts as when part it is a of prosecution’s the S., 360 evidence.” at U. 312-313. Boyd, In the defendants charged were with following murder an attempt rob, to prosecution the introduced evidence that the defendants had committed other robberies before the one involved 574 of evidence courts,6 suggest of state appeals5 to show than other purpose for no introduced crimes Clause. Process Due the violate would disposition criminal Mr. first by the opinion Court, an in charged. The crime the
in
inadmissible:
crimes
other
of
evidence
the
Harlan, held
Justice
by the defendants
committed
may
been
have
robberies
Those
.
“. .
of
murder
of
innocent
may
they
yet
March, and
prejudice
to
only tended
them
Proof
April.
Dansby in
real
away from the
minds
their
draw
to
jurors,
defendants
whose
they
wretches
were
impression
produce
issue, and
entitled
not
community,
were
and who
value
of no
were
lives
trial
for
law
prescribed
the rules
benefit
full
to the
punishment
involving the
crime
charged with
beings
human
S.,
at
142 U.
death.”
(C. A.
386, 389
States,
2d
F.
Lovely
United
g.,
See, e.
1948):
Cir.
4th
of other
of evidence
introduction
thus forbids
rule which
“The
charged,
crime
prove the
tendency to
having no reasonable
offenses
tendency
on
criminal
may
a
they
establish
except
so far
It
law.
arises
rule
mere technical
accused,
not
part of
lies
fairness
justice and
demand
fundamental
out
allowed,
were
If such
jurisprudence.
our
the basis
at
of collateral
trial
in the
be wasted
of courts
time
only
would
prejudiced
greatly
be
would
of crime
accused
persons
issues, but
their
presenting
embarrassed
otherwise
would be
juries and
before
really on trial.”
issues
on the
defenses
1942):
5th
(C.
Cir.
A.
States, F. 2d
v. United
Railton
concluded, that
apt
very
conclude, and
logical to
It
. .
certainly
again.
It is
will steal
he
once
was dishonest
man
because
*18
an
were
if ho
than
did steal
official
crooked
probable’ that
‘more
It cannot
very premises.
forbids these
our law
Yet
one.
upright
crimes
similar
other
committed
the accused
that
be shown
charged.”
one
he committed
probable
it is
show
(C.
9th Cir.
A.
States,
737
F. 2d
118
United
Tedesco
v.
also
Cf.
1952);
4th
(C. A.
Cir.
States, 195 F. 2d
689
v. United
1941); Swann
1960).
(C.
3d Cir.
A.
Jacangelo,
F. 2d 574
281
v.
United States
State,
6
2d
Seay
395 S. W.
rule,
v.
general
recognizes Texas
264,
Molineux, 168 N.
Y.
People v.
are
decisions
typical
Other
1016
9,
2d
Scott, 111 Utah
175 P.
State v.
(1901);
286
61 N. E.
485
P. 2d
Myrick,
Kan.
also State
(1947). See
(1948).
2d 748
487, 37 So.
State, 204 Miss.
Scarbrough (1957);
Evidence of prior convictions has been forbidden because
it jeopardizes the presumption of innocence of the crime
currently charged. A jury might punish an accused for
being guilty of a previous offense, or feel that incarcera
tion is justified because the accused is a
man,”
“bad
with
regard
out
to his
of the crime currently charged. Of
course it flouts human nature to suppose
that a
would not consider a defendant’s previous trouble with
law in
deciding whether he has committed the crime
currently charged against him. As Mr. Justice Jackson
put it in a famous phrase,
naive
“[t]he
assumption that
prejudicial
can
effects
overcome
instructions to the
jury ...
all practicing lawyers know to be unmitigated
fiction.” Krulewitch v. United States,
Recognition of the prejudicial effect of prior-convictions evidence has traditionally been related to the require- ment of our criminal law prove State beyond a reasonable doubt the commission of a specific crim- inal act. It surely engrained in our jurisprudence that an accused’s reputation or criminal disposition is no basis penal sanctions. Because of the possibility that the generality of the jury’s verdict might amask finding of guilt based on an past accused’s crimes or unsavory reputation, state and federal courts have consistently refused to admit evidence of past crimes except in cir- cumstances where it tends prove something other than general criminal disposition.
As I have I stated, do not understand the opinion to assert this Court would find consistent with due process the admission of prior-crimes evidence for no *19 bearing has it value probative what than other purpose currently crime a commit to disposition accused’s an on evi- that out points issue, this ignores It charged. been not has contexts other in crimes prior of dence to admitted be it cannot that prejudicial so thought may crimes past Thus, purpose. valid particular a serve crime past a between design a common show to used handi- distinctive show to charged, currently one presently the act that show or to defendant, of work needWe not unintentional.7 probably was at issue convic- of prior of evidence admission disagree are convictions past these, because such cases in tions of innocence of question to the directly relevant its because admitted It is charged. currently crime charges, current of elements going value, probative in inherent prejudice outweighs it strong is so further Court as the Also, crimes. prior of evidence traditionally has crimes prior evidence out, points credi- defendant’s impeach either admitted or to counter- behalf, own his he testifies when bility good his toas by the defendant introduced evidence act possibility situations, these In each character. convic- the evidence resulting from prejudice pur- by legitimate outweighed to be thought is tions defendant When a evidence. by the served poses by show- his innocence convince the attempts to it character person he such ing it that charged, the State the crime committed unlikely that he counteracting this interest legitimate has been showing the accused good character has initiated The defendant convicted. previously be al- and the State reputation, his should inquiry into general character evidence as respond to lowed best can. exceptions McCormick, set generally out Evidence § See
Similarly, when prior convictions are introduced to impeach the credibility of a defendant who testifies, specific purpose is thought to be served. The theory is that the State should be permitted to show defendant-witness’ credibility is qualified by past his record of delinquent behavior. In other words, the de- fendant put is to the same credibility test any other witness. A defendant has some control over the State’s opportunity to introduce this evidence in that he may decide whether or not to take the stand. Moreover, the jury hears of the prior convictions following a defend- ant’s testimony, and it may be thought' this trial context combined with the usual limiting instruction re- sults in the jury’s actually behaving in accordance with the theory of limiting instructions: that is, that prior convictions are only taken into account in assessing the defendant’s credibility.
Although the theory justifying admission of evidence of prior convictions to impeach a defendant’s credibility has been criticized,8 all that is necessary for purposes of deciding this case is to accept its theoretical justification note the basic difference between it and the Texas procedure. In the case of impeachment, as all the examples cited the Court, the prior convictions are considered probative for a limited purpose which is relevant to the jury’s finding of guilt or innocence. This purpose is, of course, completely different from the pur- pose for which convictions are admitted in recidivist cases, where there is no connection between the evidence or innocence. In all the situations pointed out by the Court, admission of prior-crimes evidence rests on a conclusion the probative value of the evidence outweighs 8See, g., e. Note, Other Crimes Evidence at Trial: of Balancing and Other Matters, 70 Yale L. J. 763 (1961). no middle is There prejudice. possibility conceded exclu- admission alternatives between position purpose serve is to if the because, sion admitted it must probative, considered guilty defendant whether decides before one delicate becomes thus The problem or innocent. possibility against value balancing probative *21 courts federal and most state result the prejudice, supervisory of its exercise in the this Court (including that has been courts) in federal proceedings over power the balance to draw discretion given is judge trial the uniform this of In view trial. the of context in the evidence prior-convictions apparent is tradition, to the relating purposes specific for certain introduced show than to innocence, other guilt determination Due the not violate would disposition, criminal general a Clause. Process prior value of probative the where situations
From these outweigh prejudicial its thought to is evidence convictions conclusion legitimate draws the Court impact, the inherently prejudicial not so is prior-convictions It combines invariably prohibited. is that its admission of recidi- concededly purpose valid the premise following logic: prior- since produce vist statutes aof guilt phase at the may be admitted crimes evidence purpose a serves valid where admission trial valid, prior statutes purpose since guilt phase may of the proven be the course crimes may also assess trial order that whether an if defendant, guilty, should sentenced found I recidivist statutes. be- punishment enhanced under only syllogism plausible lieve this on the be- surface, justify do not combine to cause Court’s its premises I far-reaching result. believe the Court has fallen into logical fallacy fallacy sometimes known middle, because it undistributed has failed examine the supposedly shared principle between admission of prior crimes related to guilt and admission in connection with recidivist statutes.9 That the admission in both situa- tions may serve a valid purpose does not demonstrate the former practice justifies the latter any more than the fact that men and dogs are animals means that men and dogs are the same in all respects.
Unlike the purpose for the admission prior-convictions evidence in all the examples cited by the Court, admission in connection with enhancing punishment for repeating offenders has nothing whatever to do with the question or innocence of the crime currently charged. Because of the complete irrelevance convictions to the question of guilt or innocence, recidivist situation is not one where the trial courts are called upon to balance probative value of prior con- victions against their prejudicial impact. The purpose of admitting prior-convictions evidence should be served and prejudice completely avoided by the simple expedient *22 of a procedure which reflects the exclusive relevance of re- cidivist statutes to the issue of proper punishment. Only after a defendant has been found guilty does the question of whether he fits the recidivist category become relevant to the sentence, and any issue of fact as to his prior convictions should then be decided by the jury. The availability of this procedural alternative, through
which the interests of the State as reflected in its recid- ivist statutes can be fully effectuated while prejudice to the defendant is avoided, means that the only interest the State may offset against the possibility of prejudice to justify introducing evidence of prior crimes in these cases is the inconvenience which would result from post- poning a determination that the defendant falls within a recidivist category until after the jury has found him guilty of the crime currently charged. However, for the
9See Stebbing, A Modern Introduction to Logic (6th ed. 1948). to necessary not is it cases, these deciding of purpose conduct- not in convenience State's the whether consider ensues which prejudice the justifies trial two-stage a ing before jury to a presented are convictions prior when the of guilty defendant the whether decided has it even has Texas that fact the For charged. crime find to used method the convenience matter this the against balance to convictions prior regarding facts prior- this admission the from ensues which prejudice Texas, the Spencer No. In evidence. convictions portion that truth the to stipulate to offered defendant previ- had he alleged which indictment of the the within him put which crime aof convicted ously to refused prosecutor The statute. recidivist aof scope allowed courts Texas the stipulation, this accept jury the to presented to conviction prior the proof dealing statute recidivist the under that, ground the on the between choice jury the crimes, capital with rea- courts The imprisonment. life penalty death infor- was conviction prior the existence the soned determining relevant find would jury the which mation dispensed stipulation offered the course, Of sentence. fact to State need completely whether determine to jury found crimes Instead, defendant. to applied statute stipulation accept refusal justify tries State discretion jury’s relevant was ground on would rationale But penalty. death ordering the determining before hear, letting justify relevant might be kinds all innocence, *23 considered traditionally which sentencing but phase during admitted if extremely prejudicial admitting justify would argument Thus, trial. a about hearsay kinds all reports, probation reports, psychiatric medical past, defendant’s relevant seem might else anything virtually broad discretion exercised in sentencing. The Court evidently believes that it is consistent due process for a State to introduce evidence of a kind traditionally prejudicial considered which is relevant only to sentenc- ing discretion in a single-stage trial before a finding of guilt. This seems to me the only possible ground for affirming No. 68, since it is obvious that the offer of stipu- lation removes the need for a finding of fact to the prior conviction in connection with the recidivist statute.
I would reverse No. 68 and remand for a new trial. For me, the State’s refusal to accept the stipulation removes any vestige of legitimate interest might to balance against prejudice to the accused. To nevertheless admit the evidence seems to me entirely inconsistent with the way evidence of prior convictions is traditionally handled in our legal system.
What I have said about the State’s lack of interest in introducing this evidence when the defendant tries to stipulate to the prior conviction seems to me to apply equally to defendants under the Texas procedure who were not offered the opportunity of stipuláting to their prior convictions. Because of the unclear state of the law in Texas as to the right to have such a stipulation accepted, the failure of a defendant to volunteer a stipu- lation cannot be interpreted as indicative of what would have happened if the State stipulation made a right. The Texas Court, of Criminal Appeals approved a stipu- lation procedure for felony cases in Pitcock State, S. W. 2d 864 (1963), on the convincing ground that, because the recidivist statutes felony provided cases for automatic sentencing, a stipulation resolved all issues for which the prior convictions were relevant. As the put court it: its “[t]o allow introduction, after such stip-
ulation, resolves no issue and may result in prejudice to the accused.” 367 S. W. at 2d, 865. However, two later cases held that refusal by prosecutor to accept a *24 582 jury to the of evidence introduction and the
stipulation,
was
stipulation,
of
an offer
over
convictions
prior
of
714
2dW.
State,
388 S.
Sims
See
error.
reversible
Thus,
(1966).
State, 2d
S. W.
Ross
(1965);
to
procedure
stipulation
the
reduced
courts
Texas
the
of
refusal
allowed
and
prosecutor,
the
to
an admonition
con-
only
the
felony cases
though in
even
stipulation
the
refusing
for
have
could
prosecutor
the
reason
ceivable
pre-
of
impact
prejudicial
the
of
benefit
the
have
was to
jury.
to the
convictions
senting prior
merely
become
had
stipulation
the
Because
in
petitioners
the
discretion,
prosecutorial
of
a matter
right
any
waived
have
to
be said
cannot
69 and
Nos.
me
to
it seems
convictions,
prior
stipulate their
to
must
they
right,
stipulation
of a
in
absence
that,
the
No.
petitioner
as the
light
same
in the
regarded
defendant’s
If a
refused.
was
stipulation
offer
whose
the
interest
any legitimate
removes
stipulation
offer
convic-
presenting
otherwise
might
State
the
makes
purposes,
for recidivist
to the
tions
it seems
then
process,
due
inconsistent
introduction
Clause
Process
Due
of the
protection
me
to
a defendant
to
according
whether
limited
not be
should
might
prosecutor
chance
explored
actually
pro-
stipulation
Since
stipulation.
offer
an
accept
state
minimal
effectuate
completely
would
cedure
statutes
its recidivist
under
found
having facts
interest
at
while
trial,
two-part
aof
inconvenience
without
prevent
chance
a defendant
offering
time
same
due
me that
seems
prejudice,
possibility
safeguard.
requires
process
solely
evidence
prior-convictions
admission
If the
a de-
event
in the
enhancing punishment
purpose
when
process
due
violates
guilty
found
fendant
conceding
right
given
is not
defendant
admission, peti-
its
prevent
prior-convictions
*25
timers’ convictions in
Nos.
and 69 must be reversed.
No. 70, however, raises the question of whether a decision
that the old Texas procedure violates due process should
be retroactively applied to convictions which are final but
which are collaterally attacked in the federal courts by
habeas corpus. Considerations of fundamental
fairness
have led to the opening of final judgments in criminal
cases when it has appeared that a conviction was achieved
in violation of basic constitutional standards. Thus, in the
decisions which have been applied retroactively, Gideon v.
Wainwright,
In my view, these factors justify limiting the appli-
cation of the decision I propose to nonfinal convic-
tions. Texas came to rely on the constitutionality of
the procedure involved in these cases by this Court’s
consistent failure to review
practice
until the grant
of certiorari
in these cases. Moreover, there can be no
doubt but
that application of this rule to final convic-
tions would seriously disrupt the administration of crim-
which
States
other
as
well
Texas
law
inal
eases.
procedure
similar
employed
Thus,
(1966).
S.U.
Jersey,
Newv.
Johnson
Cf.
I
which
procedure
whether
becomes
question
proceeding
every
infected
unconstitutional
hold
would
convict-
danger
clear
part
it was
seems
It
Shott, supra.
Tehan
See
innocent.
ing
Texas
impact
prejudicial
me
cases.
final
application
justify
toas
great
so
doctrine
constitutional
where
cases
all
In
made
was
judgment
applied,
retroactively
*26
the
of
heart
the
to
went
erroneous
found
procedure
the
con-
of
danger
the
raised
and
conviction
the
of
fairness
the
Douglas,
and
Gideon
Thus,
innocent.
the
victing
to
defendant
indigent
anof
failure
that
concluded
Court
negated
appeal
on
trial
at
counsel
represented
Similarly,
proceeding.
adversary
fair
aof
possibility
be-
applied
retroactively
was
Illinois
v.
of
rule
Griffin
appeal
meaningful
a
forgo
to
indigent
an
forcing
cause
meant
transcript
pay
not
could
he
because
for deter-
system
the State’s
part
basic
of a
availability
financial
on
conditioned
was
innocence
guilt
mining
funda-,
obvious
an
was
procedure
This
resources.
convic-
leading to
process
in the
fairness
denial
mental
been
have
rulings
new
where
area
final
In
tion.
to
prejudice
Denno, the
v.
Jackson
retroactively applied,
pro-
fair
aof
assured
not
was
he
was
the defendant
confession,
his
voluntariness
determining the
cedure
a con-
account
into
take
might
moreover,
and,
determining
coerced
to be
believed
which
fession
results
which
prejudice
Obviously,
guilt.
defendant’s
obtained
confession
aof
learning
jury’s
from
finding
heart
directly to
unconstitutionally goes
Constitution
reason
one
and because
guilt;
unre-
is their
confessions
involuntary
outlaw
held
(for
(1936)
278
S.
297 U.
Mississippi,
v.
Brown
liability,
g., Rogers
e.
Richmond,
other reasons
see,
v.
S.U.
(1961); Culombe Connecticut,
In contrast to the unconstitutional procedures involved
in the cases discussed above,
the admission
prior-
convictions evidence in connection with a recidivist stat
ute does not seem me
justify
reversal of final convic
tions. The
prior-convictions
fact that
evidence has been
traditionally admitted when
related to
or innocence
suggests that its prejudice has not been thought
great
so
as to undermine
very
“the
integrity of the fact-finding
process” and to involve a “clear danger of convicting the
innocent.” See Linkletter v. Walker, 381 U.
atS.,
639;
Shott,
Tehan S.,U.
at 416. Consequently, I would
apply
a decision in line with this dissent to final con
such
victions,
as No. 70, a habeas corpus proceeding.
The
I
decision
propose is consistent with a large body
judicial
thought. Two United States Courts of Ap
peals
adopted
the view that
procedures
which authorize admission of prior-convictions evidence
before the jury determines that
the defendant
guilty
*27
violate due process.
In
Warden,
Lane v.
320 F. 2d
(C.
179
A. 4th Cir. 1963), the court reasoned that “it
patent
jurors
would
likely
to find a man
guilty of a narcotics violation more readily if aware that
he has
prior
had
illegal association with narcotics.
. . .
Such a prejudice would clearly violate the standards
of impartiality required for a fair trial.” 320
2d,
F.
at
In the same vein, the Third Circuit,
in United
States v. Banmiller,
convictions. has finding a before crimes prior proof from rule century, a than for more recognized been in a made crimes prior toas finding guilt.10 finding after hearing separate which procedures adopted have of States majority The cases procedure inherent prejudice cure procedures have recidivist 31 States all, In some bar. at convictions prior the introduction postpone which guilty defendant has found after until others three And at least charged.11 currently crime 10 & 7 99; Act of 6 Vict., c. 25 1861, & Act, 24 Coinage Offences Shuttleworth, K. 375. Reg. v. 3 Car. & 111; 4, c. Will. 11 legislation adopted either which States The con separates the determination judicial decision currently guilt of crime the determination from victions Arkansas, (1962); 12.55.060 Stat. Alaska, Alaska § charged are: Colorado, (1965); 2d 601 W. State, 239 Ark. 836, 394 S. Miller v. Connecticut, (1953); 596 253 P. 2d People, 54, Colo. 127 v. Heinze Delaware, Del. (1921); A. Ferrone, 96 Conn. 160, 113 452 State v. Ann. Stat. Florida, 1964); Fla. (b) (Supp. 11, 3912 Tit. Ann. § Code Idaho, (1958); State, 102 2d 814 Shargaa So. v. (1965), §775.11 Illinois, Ill. (1963); 2d 326 51, P. Johnson, 383 Idaho 86 State v. 38, c. (1963), Rev. Stat. § 22-43 Ill. 38, c. Stat. §§603.1-603.9 Rev. Louisiana, (1949); Ann. 21-107a Stat. Kansas, § Gen. Kan. (1965); Maryland, Md. 1962); (Supp. D 15:529.1 Ann. Stat. § Rev. La. (1954); Ann. Michigan, Stat. 713; §28.1085 Mich. of Proc. Rule Missouri, Stat. Rev. Mo. §609.16; Ann. Minnesota, Stat. Minn. (1964); 29-2221 Stat. Nebraska, Rev. Neb. (1959); § 556.280 § Cox, Mexico, Johnson 1943; New Law York, Y. Pen. § New N. Dakota, N. D. Cent. (1963); North 2d 55, P. M. 72 N. 2961.13 Code Ann. (1960); Ohio, § Ohio Rev. 12-06-23 Code § (Supp. 1964), Tit. Ann. Oklahoma, § 860 Okla. Stat. (1954); Stat. (1962); Oregon, Rev. Ore. State, P. 2d Harris Tit. Ann. Pennsylvania, §5108 Pa. Stat. (1961); 168.065 § Tennessee, (3) (1939); 13.0611 Dakota, S. D. Code (1963); § South — State, Tenn. *28 Harrison (1955), Ann. Code §40-2801 Tenn. Proc. Art. Crim. Texas, Code (1965); Texas 2d 713 S. W. —, 394
587 have substantially mitigated the prejudice of the single- stage recidivist procedure by affording the defendant right to stipulate to his prior crimes to prevent their introduction at the trial.12 Thus, only 16 States still maintain the needlessly prejudicial procedure exemplified in these three cases. The decision I propose would require only a small number of States to make a relatively minor adjustment in their criminal procedure to avoid the manifest unfairness and prejudice which have already been eliminated in England and in 34 of the United States.
I would reverse the convictions in Nos. 68 and 69 and remand for a new trial. In No. 70, I would affirm this final conviction. Justice Brennan, with whom Mr. Mr. Justice
Douglas
joins, dissenting.
I join the opinion of The Chief
Justice
insofar as
that opinion would reverse in Nos. 68
I
would,
36.01 (1966); Utah, Utah Code Ann. §76-1-19 (1953), State Stewart,